I don't think that guidance can be taken to cover anything other than what it says, I'm afraid.

A study of what I think their shorthand means is General Condition 9 Section 6 (GC9.6) is what we need to do. Not tonight ....

In reply to a post by AndyHCZ:

OFCOM will never view this as a 'material detriment' to Plusnet users under General Condition 9.6, as Plusnet are not modifying the contractual conditions.

I think this is likely the correct interpretation.


The terms of a contract are what an reasonable third party believes the parties agreed to prior to the formation of the contract (Smith v Hughes (1871) LR 6 QB 597).

Most of what the parties agreed to will be the explicit terms of the contract. I've looked through Plusnet's residential terms and conditions, and can see nothing relating to telephone support hours.


There are a limited number of scenarios where terms can be implied into a contract.

The most common implied terms scenario is when terms are implied by statute, such as the well known Sale of Goods Act 1979 implied terms (which apply to contracts for the sale of goods only) and the similar but somewhat less well known Supply of Goods and Services Act 1982 implied terms (which apply to contracts for the supply of services with or without the sale of goods in the same contract).

In a limited range of scenarios, terms can be implied by the courts.

When there are repeated contracts between the parties, it is possible for terms consistently appearing in post-contractual documentation to become implied into later contracts (as in Spurling v Bradshaw [1956] 1 WLR 461). This scenario does not appear to have any relevance here, as consumers will typically have no more than one new contract every 12 months with Plusnet. Moreover, unless there is something I am unaware of as a non Plusnet customer, no post-contractual promise by Plusnet to provide telephone support at certain hours for the duration of the contract is included in the documentation you receive after entering into a contract - there is merely notification of the current opening hours on the Plusnet web site and, presumably, if you phone for support out of hours.

Other scenarios where terms have been implied by the courts include terms to clarify the presumed shared intention of the parties, though in the leading case I'm thinking of (Attorney General for Belize v Belize Telecom Ltd [2009] UKPC 10) the Privy Council made it clear that implied terms cannot improve upon the contractual agreement between the parties.


I cannot therefore see any justification within general contract law to imply terms relating to support hours into Plusnet's contract. The statement on Plusnet's web site that residential support hours are currently 24/7 doesn't amount to any sort of promise by Plusnet to continue providing 24/7 support, let alone a promise to anyone entering into a new contract by Plusnet that would therefore form an explicit contractual term on support hours.



In contracts for the provision of certain regulated telecommunications services, Ofcom imposes a requirement to embody some general conditions under the Telecommunications Act 2003. These General Conditions include General Condition 9 imposing certain minimum requirements for the terms of telecommunications contracts.

GC 9.2(f) requires contracts to include terms detailing:

the types of maintenance services and customer support services offered, as well as the means of contacting these services

though this does not appear to extend to a requirement to specify the opening hours of any support services provided under the contract. Obviously, any explicit contractual term specifying support hours is likely to bind the provider to provision of support services for the specified hours at a minimum.

I believe that Plusnet's specification of 'helpdesk services' (without further definition) in the first clause of the various product specific terms meets GC 9.2(f).


As has been noted, GC 9.6 imposes a requirement to give one month notification of changes to contractual terms amounting to material detriment, and for subscribers to be given the right to contractual termination without penalty if they do not accept the detrimental change.

In reply to a post by AndyHCZ:

There was a clarification of GC 9.6 when mobile phone operators began applying price hikes 'in line with inflation'.

Indeed, Ofcom issued guidance about when a price increase would represent a material detriment. That guidance is unhelpful here, as it relates solely to price changes.

It is difficult to see how GC 9.6 is engaged by a change in support hours, considering that there is nothing in the contractual terms specifying when Plusnet's helpdesk is open.


If Plusnet were to reduce the telephone helpdesk hours so severely that it could be argued that there was not a meaningful telephone helpdesk service any more, there is an argument that Plusnet would breach the contractual requirement to provide helpdesk services. However, I find it difficult to see that the purported change goes as far as to amount to removal of helpdesk services. The new opening hours are still much longer than many residential helpdesks.


Relatively few contractual terms are conditions, which give a right to repudiate and terminate the contract on breach. The well known Sale of Goods Act 1979 terms about fitness for purpose, reasonable quality and conformation with description are notable exceptions, as they are specified as conditions in the Act which is why they are so powerful.

In most cases, terms are silent as to whether they are conditions (right to repudiation on breach) or warranties (never giving rise to the right of repudiation). In some cases it is still possible to classify the term as a condition or warranty, though unspecified terms are usually innominate terms. Breach of an innominate term requires the innocent party to be deprived of "substantially the whole benefit" of the contract (Hong Kong Fir Shipping v Kawasaki Kisen Kaisha [1962] 2 QB 26) before the right of repudation on breach exists. As the main subject material of the Plusnet contract is telecommunications services, it is doubtful that any restriction in helpdesk hours would deprive the customer of "substantially the whole benefit" of the contract, at least in any general sense.

There may be situations where a service failure together with the restricted availability of the helpdesk amounts to deprivation of "substantially the whole benefit" of the contract, giving the consumer the right of termination - though in this scenario the right of termination would follow almost entirely from the unresolved failure of services, not the limited helpdesk hours. It is possible for the right to renunciation to exist following an anticipated breach of contract, but such an anticipated breach must be clear and absolute to give rise to the right to renounce. The right to renounce based on unresolved service failure therefore seems unlikely to exist in any anticipatory scenario, as there cannot be certainty about future breakdown affecting service provision.

Whatever the correct legal interpretation of that may be, there is still the question of "mis-selling". Plusnet are still advertising the support as 24/7.

24/7, 365 days a year award-winning help from our UK customer support centre. We're always happy to help and it's free to call from landlines and mobiles with inclusive minutes

In reply to a post by mlmclaren:

considering a lot of the capacity issues spread around this and other forums started to become more of a problem in February - March then I would say those times you said they where dead may have become busy.

Possibly, but I can say it was VERY busy after 8am, and before 10pm.. Rarely was there a gap between calls.

They did happen but it was the exception rather than the rule.

Too many customers, not enough staff. Thats the issue...

Oh, and a lack of capacity for the existing customers.

In reply to a post by AndyHCZ:

Relatively few contractual terms are conditions, which give a right to repudiate and terminate the contract on breach. The well known Sale of Goods Act 1979 terms about fitness for purpose, reasonable quality and conformation with description are notable exceptions, as they are specified as conditions in the Act which is why they are so powerful.

Surely, if something is described (when contract starts) as including 24/7 telephone service, then some alternative telephone service does not conform to the description?

Agreed. Statements such as 'Unlimited Broadband' and '24/7 support' are selling points, and stating a different situation in the small print is mis-selling.

Unless Plusnet are claiming to be a predominantly business BB supplier, the 24/7 statements should be removed, as they advertise a feature which is scheduled for removal (there's no notice given regards the 24/7 removal in the advert).

http://www.camieabz.co.uk/files/support.png

In reply to a post by David_W:

When there are repeated contracts between the parties, it is possible for terms consistently appearing in post-contractual documentation to become implied into later contracts (as in Spurling v Bradshaw [1956] 1 WLR 461). This scenario does not appear to have any relevance here, as consumers will typically have no more than one new contract every 12 months with Plusnet.

I have been on a monthly contract since May 2005. I hereby claim relevance and implied terms.

I wonder if there's an implicit obligation to a contract taken in good faith on the back of a major advertising point?

Would it render a contract to be null and void if a major selling point of that contract is removed?

The legal stuff aside, it does all suggest that someone at Plusnet is cutting costs, and this suggests that their margins have been pared to the bone by ultra-low offers to new customers.

The Plusnet terms and Conditions include

Plusnet Broadband Family service terms

What we provide

1. The service we agree to give you comprises:

1. a high-speed network access to the internet that is delivered over a Plusnet or BT compatible telephone line;
2. helpdesk services; and
3. any other applications and features as described at www.plus.net/broadband
4. You will need to have a Plusnet or BT telephone line to enable you to receive your Plusnet Broadband service.

24/7 support is one of the major features described on all products available from the linked page.

Exactly, though the separation into two bullet points is where legal niceties that I think I mentioned earlier can come into play.

I haven't checked any recent adverts, but if mentioned there it definitely is relevant to the person signing up triggered as a result of the advert.

Of course, the whole question is only relevant to those within the minimum term for their product, whether by recent/new joining or retention deal.

Edited by RobertoS (Fri 26-Jun-15 12:10:19)

In reply to a post by David_W:

The terms of a contract are what an reasonable third party believes the parties agreed to prior to the formation of the contract (Smith v Hughes (1871) LR 6 QB 597).

Most of what the parties agreed to will be the explicit terms of the contract. I've looked through Plusnet's residential terms and conditions, and can see nothing relating to telephone support hours.

It has been pointed out to me that there is an argument (see, for example, here and here) that the 24/7 nature of the helpdesk set on the product pages is incorporated into the contract by reference.

I don't believe "The Terms and Conditions of each service are made up of this important information and the following terms (including any other document we refer to in those terms)" is capable of incorporating anything from the Plusnet web site into the contract implicitly. The reference to "any other document" is "[that] we refer to in [the following] terms" - in other words, other material is incorporated into the contract only if it is referred to explicitly.


The wording of clause 1 of the fibre broadband conditions is:

1. a high-speed fibre broadband service that is delivered over a Plusnet or BT compatible telephone line;
2. helpdesk services;
3. any other applications and features as described at www.plus.net/fibre-broadband/

The broadband wording mirrors these terms.

The effect of the word 'other' at 3. might well have the effect of excluding any reference to helpdesk services on the product web page from incorporation into the contract, as the helpdesk has already been covered at 2. Indeed, it may be that all 3. does is incorporate the web site description of the services other than the broadband service itself and the helpdesk into the contract by reference.


I think the fairest conclusion is that the true construction of the contract with regard to the definition of the helpdesk service is unclear. I believe the most likely construction is, as I explained in the previous paragraph, that the description of the helpdesk service from the web site is not incorporated into the contract by reference, though it is possible a court would take the opposite view.

As I said in my previous post, the terms of a contract are what an reasonable third party believes the parties agreed to prior to the formation of the contract (Smith v Hughes (1871) LR 6 QB 597). When the effect of the wording is doubtful, the question becomes what did both parties have in their mind at contract formation. I'm doubtful that agreement was formed on the basis that both parties agreed helpdesk services being available 24/7 is a key feature of the product, giving customers the right to repudiate the contract if the helpdesk hours were reduced.


Even if the true construction of the contract is that the helpdesk service is defined as 24/7, Plusnet's notification of the changed opening hours would exercise Plusnet's right to variation under clauses 50 to 53 of the Residential Standard Terms. The question then is whether this should be notified as a possible material detriment, with the right to penalty free termination on request if material detriment exists.

Ofcom's discussion of material detriment appears to be limited to price. I'm not aware of any case law relating to material detriment and telecommunications, though I confess I haven't searched exhaustively.

When necessary, law works by analogy. The TUPE regulations use the concept of material detriment as part of determining whether changes to an employee's contract on transfer of undertakings amount to termination of employment. In this context, the Employment Appeal Tribunal has held that material detriment is to be subjectively determined (see [49] to [54], especially [54], of Tapere v South London & Maudsley NHS Trust [2009] UKEAT 0410_08_1908).

If we take it that material detriment is to be subjectively determined, the right to termination under clause 53 could only be engaged by a customer who could show they were likely to suffer detriment from the reduction in support hours. I contend this would be very difficult to do - it is not like a price change where you can show that your usage pattern over the last 3 months would result in higher charges under the new regime.


As such, I think it would be difficult to argue you have the right to penalty free termination based on material detriment. It looks far too tenuous to me. You would have to show the true construction of clause 1 is at variance with the literal meaning of "any other applications and features", and that this should be read as "any applications and features" in order for the web site wording on helpdesk hours to be incorporated into the contract. You would then have to show that a reduction in helpdesk hours is of actual and not just hypothetical material detriment to you.

Edited by deleted (Fri 26-Jun-15 13:48:27)